Lands formerly embraced within The provision of the act of June 6, Where at the date of the act of made In case a selection under the ex- 127 88 458 Page. the abstract of title of the relin- excess area__. Where prior to the repeal of the Reservoir Lands. See Arid Land; Right of Way. Residence. The fact that a homestead entry- ment_. A homestead entryman is entitled Failure of a homestead entryman 578 603 30 348 will not be construed an abandonment thereof, where he in good faith established and maintained residence prior to engaging in such service and has continued to comply with the requirements of the law in the matters of cultivation and improvement; but such employment will not relieve from the necessity of establishing residence nor excuse the entryman's failure in that respect- Right of Way. Regulations relative to applications for use of name of United States in judicial proceedings to forfeit rights of way. Circular of July 7, 1905, under act of February 7, 1905, relating to rights of way over lands segregated from Yosemite National Park and included in Sierra forest reserve.‒‒‒ Regulations of September 28, 1905, relative to rights of way for canals, ditches, reservoirs, telegraph and telephone lines, etc.. Paragraph 2 of circular of February 11, 1904, and paragraphs 3 and 66 of the circular of September 28, 1905, relating to rights of way for railroads, canals, reservoirs, etc., amended. Paragraph 54 of the regulations of September 28, 1905, requiring that all applications for rights of way under the act of February 15, 1901, for telegraph and telephone lines, must be accompanied by an official statement of the Post Office Department showing that the applicant has complied with the regulations under title 65 of the Revised Statutes, revoked Directions given that all applications for rights of way or other privileges over or upon public lands in forest reserves, now pending before the General Land Office and falling wholly within the jurisdiction of the Department of Agriculture, as defined in departmental letter of June 8, 1905 (concurred in by the Secretary of Agriculture in letter of June 13, 1905), be transmitted to the Department of Agriculture for consideration and disposition___ Where applications for rights of way or other privileges affect lands lying partly within and partly without forest reserves, and involve questions within the jurisdiction of the Department of Agriculture and also questions within the jurisdiction 5194 Vol. 34–05 M-48 Page. 396 358 15 212 583 693 64 of the land department, separate applications will not be required, but in such cases the application will be examined, and, if found regular, approved by the land department in so far as it affects lands without the reserve, and then transmitted to the Department of Agriculture for consideration and such action as may be proper relative to the lands within the reserve; but in the event it appear that the right to use lands without the reserve is subordinate to permission to use lands within the reserve, the application should first be passed upon by the Secretary of Agriculture No rights can be initiated for the use or benefit of any railroad company under the provisions of section 1 of the act of March 3, 1875, prior to the organization of such company under the laws of a State or Territory The grant of sections sixteen and thirty-six made to the Territory of New Mexico for school purposes by the act of June 21, 1898, is a grant in praesenti, and any question as to the authority of the Territory to grant rights of way for railroads across any such lands is one for determination by the officers of the Territory and not by the Secretary of the Interior___ The right of way granted by section 13 of the act of February 28, 1902, is a mere easement, for depot grounds, terminals, and other railway purposes,' and the grantee has no authority to extract oil from the grounds embraced in a right of way acquired under said act_. The act of March 3, 1901, specifically provides that telephone and telegraph lines constructed under its provisions shall be operated and maintained under rules and regulations to be prescribed by the Secre tary of the Interior, which carries with it the power to require sworn statements from the person, company, or corporation operating the lines, to the end that the annual tax be properly assessed and collected ; but in the event of noncompliance with such requirement, it is not within the power of the Secretary, under executive authority, to close the places of business of the offending parties, any question as to the forfeiture of the right of way being a matter for determination by the courts Page. 64 593 548 504 283 Page. The annual tax upon telephone and telegraph lines referred to in section 3 of the act of March 3, 1901, is conditioned upon two things: (1) The line upon which the tax is sought to be imposed must be upon lands such as the Secretary of the Interior is authorized to subject to the terms of the act, and (2) the line must not be subject to State or Territorial taxation. Where the line upon which the tax is sought to be imposed runs through any of the lands which the Secretary is authorized to subject to the terms of the act, and is not subject to State or Territorial taxation, such line is under the act subject to an annual tax not exceeding five dollars for each ten miles thereof constructed and maintained, regardless of any tax which may be municilevied and collected by a pality through which the line runs 289 Rights of way under the provisions of section 3 of the act of March 3, 1901, are in the nature of an easement," and are property rights subject to sale or transfer without the consent of the Secretary of the Interior The term " line," as employed in section 3 of the act of March 3, 1901, means the right of way granted, and each separate line of poles is held to constitute an independent line, upon which the grantee may place as many wires as he chooses, the tax to be assessed against the property only at the rate of five dollars for each ten miles of line. In towns, where no well-defined system of parallel wires is maintained, each wire will be regarded as covering a separate right of way, and, if otherwise within the terms of the act, is subject to taxation as such.. The approval by the Secretary of the Interior of the plats of incorporated cities and towns in the Indian Territory operates as a dedication of the streets and alleys thereof to public use, and thereafter, the Indians no longer having any interest in such in the ground embraced streets and alleys, the Secretary of the Interior has no authority to subject them to the terms of section 3 of the act of March 3, 1901, authorizing him, among other things, to grant rights of way for the construction of telephone and telegraph lines within and through incorporated cities and towns in the Indian Territory 238 288 670 Riparian Rights. Page. Upon the admission of a State into the Union it acquires in its sovereign capacity the right to all the soil under navigable rivers, subject to the power of Congress to regulate commerce among the States and with foreign nations, and all lands that may afterward form upon the beds of such streams become the property of the sovereign State, or of the proprietor of the shore lands, in virtue of his riparian right, according to the law of the State in which the land is situated School Land. GENERALLY. Sections sixteen, thirty-six, thirteen and thirty-three of the lands ceded by the Comanche, Kiowa and Apache Indians under agreement ratified by the act of June 6, 1900, reserved for school and other purposes, are not subject to the operation of the mining laws_____ The grant of sections sixteen and thirty-six made to the Territory of New Mexico for school purposes by the act of June 21, 1898, is a grant in praesenti, and any question as to the authority of the Territory to grant rights of way for railroads across any such lands is one for determination by the officers of the Territory and not by the Secretary of the Interior. The grant of sections sixteen and thirty-six made to the State of South Dakota for school purposes by the act of February 22, 1889, took effect on the admission of the State into the Union, as to lands at that date identified by the government survey. but as to such of the indicated sections as had not been surveyed at the date of the admission of the State, the right of the State does not attach unless and until identified by survey, and if at the time of survey they are known to be mineral in character, they are excepted from the grant-- The grant of sections sixteen and thirty-six, to the State of South Dakota for school purposes, by the act of February 22, 1889, took effect on the admission of the State into the Union as to lands of the class and character subject to the grant in such of said sections as were at that date identified by the government 423 548 485 Pending the disposition of a school land indemnity selection, even though erroneously received, no other application including any portion of the land embraced in such selection should be accepted, nor will any rights be considered as initiated by the tender of any such application__ 12 In the adjustment of school land grants, it is within the power, and is the duty, of the land department to see that sufficient losses, or quantities of land to which the State might have been entitled under its grant had they been in place and not otherwise disposed of, equal in amount to previous certifications on account of the grant, approximately, are furnished as a base for such previous approvals or certifications, before other approvals and certifications are made on account of the grant There is nothing in the act of March 1, 1877, relating to indemnity school land selections in the State of California, in conflict with this requirement Where a school section is embraced within the limits of an Indian reservation, the State may, under the provisions of section 2275 of the Revised Statutes, as amended by the act of February 28, 1891, waive its right thereto and select other land in lieu thereof, nothwithstanding such section was identified by survey prior to the establishment of the reservation Under the grant of sections sixteen and thirty-six made to the State of South Dakota for school purposes by the act of February 22, 1889, the State takes no vested in 270 270 613 Page. terest or title to any particular land until it is identified by survey, and prior to such identification the grant, as to any particular tract, may be wholly defeated by settlement, the State's only remedy in such case being under the indemnity provisions of said act and of the act of February 28, 1891, amending sections 2275 and 2276 of the Revised Statutes_. Where the title to school sections has vested in the Territory of New Mexico under the grant made by the act of June 21, 1898, and such sections are subsequently embraced within a reservation created by executive order, the Territory may, under the provisions of section 2275 of the Revised Statutes, as amended by the act of February 28, 1891, waive its right thereto and select other lands in lieu thereof. The act of February 28, 1891, amending section 2275 of the Revised Statutes, protects all rights acquired by settlements made prior to survey in the field upon sections sixteen or thirty-six, reserved for school purposes, but where a township is ordered surveyed on application in behalf of the State, under the act of August 18, 1894, and the lands are withdrawn for the purposes specified therein, such settlements only as were made prior to the withdrawal are protected as against the State Where at the time of survey of a township a portion thereof was returned as a "salt lake now dry," and no further survey of the township has since been made, the State, after a lapse of more than forty years, is justified in accepting such survey as a final and complete survey of the township and in proceeding with the adjustment of its school land grant upon the theory that the township is fractional Where public lands of the United States are in good faith purchased from a State in the belief that the State has acquired title thereto under its school grant, and in faith of such purchase are held and occupied for many years, entry thereof by a third party should not be allowed without first affording the State an opportunity to make good the title purported to be conveyed by it, by assigning a proper and sufficient basis and making selection of the land under its school grant; and in case of failure on the part of the State to make the title good, the 657 599 434 716 As between rival applicants for the same land, the prior settler must maintain his prior right by continued compliance with the law. 298 No rights can be acquired by acts of settlement as against an entryman claiming under a prior record entry, but as between subsequent claimants the prior actual settler is entitled to precedence upon the cancellation of the entry or extinguishment of the record title.. The rule that settlement rights can not be acquired by the tenant or employe of another which can be set up to defeat intervening rights, is not applicable in all cases where the relation of landlord and tenant is established, and should never be extended to cases where the relation of tenant was assumed merely for the purpose of protecting settlement rights and in furtherance of a bona fide intention on the part of a settler to assert his rights at the first opportunity Settlement upon lands in advance of the hour of opening, in violation of an order of the land department prohibiting such settlement, confers no rights upon the settler as against the first legal applicant to enter the land after the hour of opening, and such settler can not, by virtue of his mere presence upon and occupancy of the land after the hour of opening, with the improvements made prior to that time, secure a settlement right____ Notice of a settlement claim, posted conspicuously on the land, is sufficient to protect the claim against one who subsequently makes application for a portion thereof under the timber and stone act, whether the timber-land applicant has actual notice of the settlement claim or not, provided the posted notice was of such character that it might have been seen by a reasonable exercise of diligence__ Notice of a settlement claim, posted on a subdivision thereof out 257 257 524 90 side of the technical quarter-section on which the improvements are located, will protect the settler's claim to such subdivision as against the claim of one who subsequently makes application therefor under the timber and stone act‒‒‒‒ One who fails to assert any claim to a tract of public land in the adverse possession of another, and remains silent, though knowing that the adverse occupant continues to claim, occupy, and improve the land, is estopped thereby from subsequently asserting a prior settlement right thereto in himself, notwithstanding the tract is found upon survey to be a part of the technical quarter-section upon which his improvements are located___ Special Agent. Circular of February 14, 1906, relative to manner of proceeding on special agents' reports States and Territories. See School Land; Swamp Land. Failure on the part of a State to publish notice of an application for the survey of lands within thirty days from the date of such application, as provided by the act of August 18, 1894, does not affect its preference right to select such lands, for the period of sixty days from the filing of the township plat of survey, conferred by the act of March 3, 1893___ The provision in the act of March 3, 1893, according to certain States a preference right, over all persons or corporations, except prior settlers, for a period of sixty days from the filing of the township plat of survey. within which to select lands under grants made by the act of February 22, 1889, was not repealed by the provisions of the act of August 18, 1894, according a similar right of selection for a period to extend from the date of application by the State for the survey of the lands until the expiration of sixty days from the date of the filing of the township plat, provided notice of the application for survey be published within thirty days from the date of the filing of such application------ 139 The preference right, for a period of sixty days from the filing of the township plat of survey, accorded the State (Idaho) by the act of March 3, 1893. within which to make selection of lands under grants |